Mashaka Kashinje vs Republic (Criminal Appeal No. 80 of 2022) [2024] TZCA 1215 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA. J.A.. KHAMIS. J.A.. And ISMAIL. J J U CRIMINAL APPEAL NO. 80 OF 2022 MASHAKA KASHINJE.............................................................APPELLANT VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Bukoba) (Mwipopo. JM dated the 18th day of February, 2022 in (DO Criminal Appeal No. 35 of 2021 JUDGMENT OF THE COURT 2n d& 10th December, 2024 KHAMIS. J.A.: The instant appeal arises out of a judgment of the High Court, Bukoba which upheld the conviction and sentence meted out to the appellant by the trial court. The appellant contended that, the High Court based its conclusion by ignoring several material factors and hence, the impugned judgment needs to be set aside. The appellant was charged before the District Court of Biharamulo with rape contrary to section 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E 2022 (the Penal Code) and causing pregnancy to a 1

primary school pupil contrary to section 60A (1) and (3) of the Education Act, Cap 353 R.E 2019 (the EDA) as amended by section 22 of the Written Laws (Miscellaneous Amendments) Act No. 4 of 2016. The prosecution alleged that on 16th day of October, 2019 at Busiri village within Biharamulo District, Kagera Region, the appellant did have sexual intercourse with a 13 years old girl whose name is withheld to preserve her dignity. For the purpose of this judgment, she will be referred to as the victim or PW1. In the second count, it was alleged that, on the same date and place, the appellant impregnated the victim, a standard four pupil at Iloganzala Primary School. The appellant denied the charge and the case proceeded to trial. At the end of it, the trial magistrate (C.G. Rugumira, RM) was content that the prosecution proved its case beyond reasonable doubts and thus, entered conviction followed by a thirty (30) years imprisonment term for each count. The two terms were to run concurrently. The appellant unsuccessfully appealed to the High Court (Mwipopo, J) where the conviction and the sentence were sustained. Disgruntled, he preferred the instant appeal premised on nine (9) grounds in the memorandum of appeal and six (6) others in the supplementary memorandum of appeal.

Subsequently, the appellant abandoned the entire memorandum of appeal and three (3) grounds in the supplementary memorandum of appeal. In totality, the grounds that survived the backslash were: one, that the first appellate court erred in law for failure to find that exhibits PI, P2 and P3 were improperly admitted in evidence; two, that the first appellate court erred in law for convicting and sentencing the appellant based on the weakness of the defence evidence; and; three, that the case against the appellant was not proved beyond reasonable doubts. Before we carry on, we are inclined to recap the material facts leading to this appeal. It was in evidence at the trial court that around 19.00 hours on 25th day of September, 2019, the victim went to the well in Iloganzala village. As she fetched water, two men and a woman showed up to seduce her. When she declined, the trio abducted and ferried her to Karukwete village. At Karukwete, she was locked in a house, undressed and raped by the appellant until she lost virginity. As she was raped, the other man and a woman were outside the house. The victim explained of her stay in the house for two consecutive weeks during which the appellant raped her seven times. Ultimately, she was rescued by PW2, her father, who hauled her back home but the appellant ran away.

PW2 who resides in Busiri village said his daughter, the victim, was a standard four pupil at Iloganzala Primary School. When PW2 returned home at around 19.00 hours on 26th day of September, 2019 the victim was missing. He asked for her whereabouts and was simply told: "she is not around" The next day, he reported the incident to the village and school authorities and the search for the victim ensued. Subsequently, PW2 learnt of the victim's marriage in Karukwete village where she lived with a husband. He identified the house she was living in and laid hold of her but the appellant took to his heels. He questioned his daughter as to why she was there and her reply was that, "she was married." The father-maintained unawareness of any such marriage. PW2 counselled PW1 to wait for the right time for marriage and carried her back home. Thereafter, he reported the incident at the police post and escorted the victim to Lusahunga Health Centre where Enock Urio (PW5), a clinical officer, conducted medical examination and established that, she carried a four (4) weeks' pregnancy. The complaint was investigated by WP 8979 DC Elizabeth (PW4) of Biharamulo Police Station who recorded the appellant's confessional statement that was not produced in court. In the course of 4

investigation, she found that the victim, born in the year 2005, was a pupil of Iloganzala Primary School. When put on his defence, the appellant made a sworn testimony and denied to rape the victim. He told the trial court that he married the victim in accordance to customary norms and made partial payment of the bride price. Out of the TZS. 1,400,000/=, the sum of TZS. 500,000/= was advanced with a promise to settle the balance on 31s t October, 2019. The charge of rape was framed up when the appellant failed to furnish the outstanding dowry. He insisted that at the time of marriage, PW1 was 15 years old and had left school. At the hearing of this appeal, the appellant was present in person, unrepresented. The respondent Republic was ably represented by Mses. Wampumbulya Shani and Immaculate Mapunda, learned Senior State Attorneys who teamed up with Mses. Evaresta Kimaro and Matilda Assey, learned State Attorneys. In support of the first ground of appeal, the appellant faulted the first appellate court for not addressing itself on the trial court's failure to read over exhibits PI, P2 and P3 after they were cleared for admission in evidence. On that account, he invited us to expunge the said exhibits which feature at pages 30, 31, 32 and 33 of the record. 5

On the second ground of appeal, the appellant drew our attention to pages 67 and 69 of the record where the first appellate Judge considered his evidence against that of the prosecution and concluded that his marriage to the victim, a minor, amounted to committing the offences charged. To him, the Judge's remarks were unwarranted for and misinterpreted the gist of his testimony. On the third ground of appeal, the appellant asserted that, taken as whole, the prosecution's evidence did not prove the charge to the hilt and implored us to allow the appeal and release him from prison. In his view, age of the victim was more than shown in the charge sheet and claimed by the victim. Explaining, the appellant contended that, contrary to the testimony of PW1 who said she was thirteen years old, the clinic card (exhibit P2) revealed that she was born on 1s t August, 2005. He advanced that, going by that fact, when the incident occurred on 16th October, 2019, PW1 was not 13 years but rather, fourteen years old. At that point, the appellant invited us to find that there is an incurable variation between the evidence on record and the charge sheet. The appellant took an exception to the findings of the first appellate court on alleged failure to examine exhibit PI which, in his

view, did not show that the victim was a pupil of Iloganzala Primary School as claimed by the prosecution witnesses. He submitted that, had the said exhibit been carefully considered, the High Court would have found that the name of the pupil shown thereon is "BS" and not PW1 who is completely a different person. Upon taking the floor to address the Court, Ms. Shani submitted that the prosecution had proved its case beyond reasonable doubts and the respondent was geared to oppose the appeal. However, upon reflection, she made an about turn and supported the appeal. She conceded that the evidence on record materially contradicted the charge and referred us to page 10 of the record where PW1 testified that, on 25th September, 2019 at about 19.00 hours, she was abducted by the appellant and two other persons who forcefully ferried her to a house located at Karukwete Village. In that house, she was allegedly raped for two consecutive weeks. On the other hand, the charge sheet at page 1 of the record showed the offences in the first and the second counts were committed on the 16th day of October, 2019 at Busiri Village. 7

In the circumstances, Ms. Shani submitted that the prosecution did not prove its case to the hilt and implored us to allow the appeal and set the appellant free. We have considered the grounds of appeal, the record and the parties' submissions. This is the second appeal and therefore only issues of law are to be decided upon. The role of the second appellate court was restated in Sufuani Juma v. Republic, Criminal Appeal No. 6 of 2012 (unreported) where we echoed that, a second appellate court can interfere with findings of fact made by courts below only where it is shown that there has been a misapprehension of the evidence leading to miscarriage of justice, or where there has been a violation of some principle of law or practise. The basic issue is the alleged variance between the prosecution evidence and the charge and its effect on the charged offence. It is trite law that a charge which materially conflict with the witnesses' evidence renders the prosecution case uproven. In Emmanuel Kabelele v. Republic, Criminal Appeal No. 536 of 2017 [2021] TZCA 531 (23 September 2021, TANZLII) this Court took the view that: "...It is incumbent upon the Republic to lead evidence showing that the offence was

committed on the date alleged in the charge sheet which the accused was expected and required to answer. I f there is any variance or uncertainty in the dates, then the charge must be amended in terms o fsection 234 o f the CPA. I f this is not done, the preferred charge will remain unproven and the accused shall be entitled to an acquittal. Short o f that failure o f justice will occur." It cannot be gainsaid that to found a conviction in a criminal case, the charge must be proved beyond reasonable doubt. Proof beyond reasonable doubt means the evidence led by the prosecution must be cogent, credible and trustworthy to support the charge. Where the prosecution evidence differs materially from the charge sheet, it cannot be said to satisfy a court of law beyond reasonable doubt. In Barnaba Bazilia Honoli v. Republic, Criminal Appeal No. 659 of 2021 [2024] TZCA 997 (28 October 2024, TANZLII) we restated the law that, when specific time and place is mentioned in the charge sheet, the prosecution is obliged to prove the offence was committed on that specific date, time and place. 9

In this appeal, the appellant asserted that the prosecution evidence on age of the victim (PW1) and the date of occurrence of the offence varies with the particulars of the offence stated in the charge sheet. For the ease of reference, we find it apt to reproduce the relevant parts of the charge sheet, thus: "1 st Count: Particulars of the Offence That Mashaka S/o Kashinje charged on 16t h day of October, 2019 at Busiri village within the District o f Biharamulo in Kagera Region, did have sexual intercourse with "the victim" a girl aged 13 years old. 2n d Count: Particulars of the Offence That Mashjaka S/O Kashinje charged on 16t h day of October, 2019 at Busiri village within the District o f Biharamulo in Kagera Region, did impregnate one "the victim" a girl aged 13 years, a standard four pupil at Hoganzaia Primary School." Whereas the charge shows in the particulars of the offence that the victim had sexual intercourse with the appellant on 16th day of October, 2019, this does not feature in the evidence of the prosecution witnesses. PW1 claimed to have been raped on 25th September, 2019 10

for two consecutive weeks after she was abducted by the appellant; PW2 stated that the victim disappeared from her parent's residence on 26th September, 2019. In the premises, as the charge was not amended to remedy the variance, the alleged offence of rape was not proved at the required standard. Given the prosecution failure to prove the charge, it will be an academic exercise to determine the issue of age of the victim. Thus, we shall not dwell on it. Next is the contradictory account of the prosecution evidence. Assuming the charge was in order, the record reveals inconsistency in the evidence of PW1, PW2, PW3 and PW5 on what transpired between the victim and the appellant. The irreconcilable differences render the prosecution version hard to understand as we shall explain. First and foremost is the allegation that, when PW1 visited the village well to fetch water about 19.00 hours on 25th day of September, 2019, two men and a woman showed up and seduced her. When the victim declined, the men and woman abducted and hauled her to Karukwete village where she was raped in a house for two consecutive weeks. According to PW1, the abduction was done at Iloganzala village and she was rescued after two weeks. li

On the other hand, PW2 testified that PW1 disappeared from the family residency in Busiri village during night hours on 26th day of September, 2019. The incident was reported to the village and school authorities on 27th day of September, 2019 but PW1 was found two weeks thereafter. However, PW5 established that, the victim carried a four weeks' pregnancy suggesting that, she was involved in a sexual intercourse at least two weeks before the incident. The contradictions did not end up there. PW3 Vedastus Amos, a teacher at Iloganzala Primary Court informed the trial court that the victim attended classes up to 9th October, 2019. We are surprised on how the victim could attend classes in Iloganzala village at the time she was locked in the house at Karukwete village. The teacher's testimony negated the evidence of PW2 who said the victim's disappearance was reported to the school administration on 27th September, 2019. The record further reveals that, the prosecution evidence was not consistent on the scenes of the alleged abduction and rape. Whereas PW1 said she was abducted at Iloganzala village, PW2 said the village was Busiri. The evidence of PW2 also deviated from that of PW1 on the date of the incident. PW1 said she was abducted and raped on 25th 12

September, 2019 while PW2 went on record stating that the victim disappeared from her father's residency on 26th September, 2019. We are unable to come to terms with the prosecution evidence which suggests that, the victim was abducted on 25th September, 2019 and ferried to Karukwete village where she was locked in the house. If this was done as testified by PW1, how could she attend classes up to 9th October, 2019 as testified by PW3. Why was PW2 not aware that the victim continued to attend classes after his report to the village and school authorities that she went missing? All these questions did not find an answer in the contradictory prosecution evidence. We also scrutinized the clinic card (exhibit P2) which shows the victim was born on 1st day of August, 2005. That is to say, on the date of the alleged incident, 16th October, 2019 (as per charge sheet) she was fourteen years old and not thirteen years stated in the particulars of the offence. The two courts below found the prosecution had sufficiently proved the charge beyond reasonable doubts. In our view, the contradictions shown cast a serious doubt about truthfulness of the prosecution witnesses and therefore, it is unsafe to rely on their

evidence. The appellant is therefore entitled to the benefit of doubt out of the material contradictions. In the upshot, we find that the prosecution did not prove its case beyond reasonable doubts and therefore, the appeal succeeds. We thus quash the conviction and set aside the sentence of 30 years' imprisonment meted out to the appellant. We order his release from the prison forthwith unless held for other lawful cause. DATED at BUKOBA this 9thday of December, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the appellant in person unrepresented and Mr. Jamal Issa, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.